This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1655

 

Marcus Glass, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed July 20, 2004

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. 00-5902

 

Marcus Glass, 207229, 970 Pickett Street North, Bayport, Minnesota 55003 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Hudson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant argues that his trial counsel was ineffective for failing to seek additional jury instructions.  Appellant also argues that he was denied effective assistance of appellate counsel because his appellate counsel failed to raise the issue of ineffective assistance of trial counsel.  The postconviction court rejected both of appellant’s claims.  Because appellant cannot prove that he received ineffective assistance of trial counsel, he cannot show that the outcome of his direct appeal would have been different if appellate counsel had raised any of the alleged deficiencies of appellant’s trial counsel.  Accordingly, the postconviction court did not abuse its discretion in denying appellant’s postconviction petition, and, therefore, we affirm.

FACTS

A jury found appellant Marcus Glass guilty of second-degree murder.  Appellant filed a direct appeal to this court, arguing that his conviction should be reversed because the trial court abused its discretion in giving an ambiguous good-faith self-defense jury instruction; and that the trial court committed plain error in giving a first-degree manslaughter jury instruction that did not specifically state that the prosecution had to prove the absence of heat of passion beyond a reasonable doubt.  This court affirmed the conviction in State v. Glass, No. C4-01-1652, 2002 WL 1544186 (Minn. App. July 16, 2002), review denied (Minn. Sept. 25, 2002).

Appellant subsequently filed a postconviction petition, alleging ineffective assistance of trial counsel and ineffective assistance of appellate counsel.  Without conducting an evidentiary hearing, the postconviction court denied appellant’s claim of ineffective assistance of appellate counsel and found that appellant’s claim of ineffective assistance of trial counsel was procedurally barred.  Appellant now appeals from the postconviction court’s order denying him relief.

D E C I S I O N

We “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  A postconviction court’s findings of fact are afforded great deference and will not be reversed unless they are clearly erroneous, and the postconviction court’s decision will not be disturbed unless the court abused its discretion.  Id.  An evidentiary hearing is not necessary if the petition, files, and record “‘conclusively show that the petitioner is entitled to no relief.’”  State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001) (quoting Minn. Stat. § 590.04, subd. 1 (2000)).

I

Appellant argues that he is entitled to a new trial because he had a constitutional right to be present when the trial attorneys and the trial court discussed the proposed jury instructions.  Appellant also argues that his trial counsel was ineffective for failing to: (1) seek additional jury instructions when the jury asked for a fuller definition of “good faith”; (2) object at the proper times; and (3) call witnesses in his defense. 

“Once a defendant has had a direct appeal, ‘all matters raised therein, and all claims known but not raised, will not be considered in a subsequent petition for post conviction relief.’”  Wilson v. State, 582 N.W.2d 882, 884 (Minn. 1998) (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (Minn. 1976)).  But a claim that is known but not raised by the defendant at the time of a direct appeal will be considered if it is so novel that its legal basis was not reasonably available at the time of the direct appeal or if the interests of justice require relief.  Ives v. State, 655 N.W.2d 633, 636 (Minn. 2003).  Furthermore, the postconviction statute is not a vehicle for re-litigating a claim previously raised in an appeal or in a postconviction hearing.  “The court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case.”  Minn. Stat. § 590.04, subd. 3 (2002).

Appellant argues that he had a right to be present when the trial attorneys and the trial court discussed the proposed jury instructions.  It is well established that a criminal defendant has the right to be present at every stage of trial.  See State v. Charles, 634 N.W.2d 425, 432 (Minn. App. 2001) (stating that Minnesota requires that a defendant be present at every stage of trial and that “[a]lthough the right to be present may be waived, the decision to waive is personal and is not one for counsel to make but one for the defendant to make after consultation with counsel”).  It does not appear that the appellate courts have firmly determined whether the discussion of proposed jury instructions is a stage of trial requiring the defendant’s presence.  But even assuming that to be true, at the time of appellant’s first appeal, he knew of, and had an opportunity to raise, this claim.  Therefore, the postconviction court did not abuse its discretion in concluding that appellant’s claim was barred by Knaffla

Appellant also claims that his trial counsel was ineffective for failing to seek additional jury instructions regarding the definition of “good faith.”  But we note that this court previously approved the trial court’s jury instructions in our opinion in appellant’s first appeal.  See Glass, 2002 WL 1544186, *2-*4.  Because appellant raised this issue on his first appeal, his present claim is also barred by Knaffla.

Appellant’s remaining claims are likewise barred.  At the time of his first appeal, appellant was aware of the witnesses that his trial attorney called (or failed to call) as well as his trial attorney’s objections (or lack of objections).  In addition, which witness to call at trial and whether or not to make an objection are tactical decisions of a trial attorney, and we do not review matters of trial strategy for competencySeeState v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990) (witnesses); State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).

Even if we were to review trial counsel’s actions, we find no bases for appellant’s claim.  As the postconviction court noted, according to the investigative reports and police interviews, neither of the two witnesses that appellant claims his trial counsel should have called saw the actual shooting or observed any threatening behavior by the victim toward the appellant.  The postconviction court was correct when it stated, “[t]he totality of the evidence before the jury suggest that the result would not have changed, so the [appellant] was not prejudiced as a result of the jury not hearing the [two witnesses’] testimony.”  Moreover, it seems appellant’s trial counsel had good reasons not to call the witnesses.  Appellant testified that one witness had a reason to be angry with the victim, and that this witness helped provide appellant with the gun used in the killing, drove appellant to the victim despite appellant’s alleged protests that he wanted to avoid the victim, and fled with appellant after the shooting.  As respondent aptly noted: “There is no showing that [this witness] would have waived his Fifth Amendment privilege to testify, and [the witness] would undoubtedly have disputed some of appellant’s claims” that blamed and incriminated the witness.  We conclude that the postconviction court did not abuse its discretion in concluding that appellant’s claims were barred by Knaffla,because appellant knew of, and had an opportunity to raise, these claims in his first appeal to this court. 

II

Appellant argues that he was denied effective assistance of appellate counsel because his appellate counsel failed to raise the issue of ineffective assistance of trial counsel.

Appellant’s claim of ineffective assistance of appellate counsel is predicated on his underlying ineffective-assistance claim against his trial counsel.  For such a claim to succeed, appellant must first prove that he had ineffective assistance of trial counsel; otherwise he cannot show that the outcome of his direct appeal would have been different if appellate counsel had raised the issue.  See Doppler v. State, 660 N.W.2d 797, 802 (Minn. 2003).  To obtain postconviction relief on the grounds of ineffective assistance of counsel, appellant must show that the representation “fell below an ‘objective standard of reasonableness’” and that “there is ‘a reasonable probability that, but for [lawyer’s] unprofessional errors, the result of the proceeding would have been different.’”  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  When assessing whether the representation fell below an objective standard of reasonableness, there is a “strong presumption” that the conduct of defense counsel “falls within the wide range of reasonable professional assistance.”  Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

As discussed above, appellant cannot prove that he had ineffective assistance of trial counsel, therefore, he cannot show that the outcome of his direct appeal would have been different if appellate counsel had raised these issues.  Accordingly, the postconviction court did not abuse its discretion in denying appellant’s postconviction petition for relief.

            Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.